Citation Nr: 0411762
Decision Date: 05/05/04 Archive Date: 05/14/04
DOCKET NO. 04-05 006 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUE
Entitlement to an increased rating for psychiatric
disability, currently evaluated as 30 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
D. L. Wight, Counsel
INTRODUCTION
The veteran served on active duty from December 1942 to
September 1945.
This case comes to the Board of Veterans' Appeals (Board) by
means of a July 2003 rating decision rendered by the Buffalo,
New York, Regional Office (RO) of the Department of Veterans
Affairs (VA).
In April 2004, the Board granted the veteran's motion to
advance his appeal on the Board's docket pursuant to
38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c)
(2003).
FINDINGS OF FACT
1. All pertinent notification and all indicated evidential
development have been accomplished.
2. The veteran's service-connected psychoneurosis is
currently manifested by occupational and social impairment
with reduced reliability and productivity; the occupational
and social impairment from the disability does not more
nearly approximate deficiencies in most areas, such as work,
school, family relations, judgment, thinking, or mood.
CONCLUSION OF LAW
The criteria for entitlement to an increased rating of 50
percent, but not greater, for psychiatric disability are met.
38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.130,
Diagnostic Code 9400 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board notes that the Veterans Claims
Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat.
2096 (2000), [codified at 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5106, 5107, 5126 (West 2002)] and the regulations
implementing it are applicable to the veteran's claim.
The Act essentially eliminates the requirement that a
claimant submit evidence of a well-grounded claim, and
provides that VA will assist a claimant in obtaining evidence
necessary to substantiate a claim but is not required to
provide assistance to a claimant if there is no reasonable
possibility that such assistance would aid in substantiating
the claim. It also requires VA to notify the claimant and
the claimant's representative, if any, of any information,
and any medical or lay evidence, not previously provided to
the Secretary that is necessary to substantiate the claim.
As part of the notice, VA is to specifically inform the
claimant and the claimant's representative, if any, of which
portion, if any, of the evidence is to be provided by the
claimant and which part, if any, VA will attempt to obtain on
behalf of the claimant. In addition, VA is required to
inform the claimant to submit any pertinent evidence in the
claimant's possession.
In a letter dated in April 2003, prior to the RO's
adjudication of the veteran's claim, the RO provided the
veteran with the notice required under the VCAA and the
implementing regulations, to include notice of the
information and evidence required from the veteran, such as
medical statements showing an increase in severity of his
psychiatric disability, and notice of the evidence that VA
would obtain on his behalf, to include the results of a
current VA examination. Although the RO did not specifically
request him to submit any pertinent evidence in his
possession, it informed him of the evidence that would be
pertinent and requested him to submit such evidence or
provide VA with the information and authorization necessary
for the RO to obtain such evidence. Therefore, the Board is
satisfied that VA has complied with the notification
requirements of the VCAA and the implementing regulations.
The record also reflects that the veteran's service medical
and personnel records have been obtained, as have all
pertinent post-service medical records including the report
of a recent VA psychiatric examination. The report of this
examination along with the other evidence of record is
sufficient to decide the claim. The veteran has not
referenced the existence of any additional evidence pertinent
to his claim that has not been associated with the claims
folder. In sum, the Board is satisfied that VA has complied
with the duty to assist requirements of the VCAA and the
implementing regulations.
Accordingly, the Board will address the merits of the
veteran's claim.
Evidentiary Background
VA outpatient treatment records dated from March 2002 to July
2003 show treatment for the veteran's service-connected
psychiatric disorder. A November 2002 treatment record shows
that the veteran reported experiencing depression on and off
since 1994. However, the feelings of depression had recently
worsened. He reported stress from money and housing
problems. He had no relatives and few friends. He reported
that most of his friends had died. He felt lonely and had
increasing tearfulness. He had a low energy level with
occasional suicidal ideation. His appetite, sleeping, and
interest were still good. He denied hopelessness and
helplessness. He also denied present suicidal or homicidal
ideations. Antidepressants were recommended. He had no
psychomotor agitation or retardation. He had good eye
contact and his speech had a normal rate, volume, and rhythm.
His mood fluctuated between good and bad. His affect showed
a full range and was appropriate. His thought process was
goal directed without circumstantiality and tangentiality.
There was no evidence of delusion in his thought content.
His intellectual functioning was average and his cognitive
functioning was intact with no difficulty in short-term or
long-term memory. He also had no difficulty in calculation
or concentration. His insight and judgment were "o.k." A
diagnosis of depressive disorder was rendered and a Global
Assessment of Functioning (GAF) score of 50 was assigned.
A subsequent outpatient psychiatric treatment note dated in
December 2002 shows that the veteran reported that he was
feeling better. He had a good appetite and sleeping. His
tearfulness was better and he did not have suicidal ideations
anymore. He had good eye contact. His speech displayed
normal rate, volume, and rhythm. His mood was reported as
"better" and his affect was restricted. His thought
process was goal directed. He was alert and oriented to
person, place, and time. A GAF of 50 was assigned.
A June 2003 treatment record indicates that the veteran, who
was accompanied by his nephew, was pleasant and cooperative.
He was fairly groomed and talkative. He focused on long-
range memory gaps related to his World War II combat traumas.
He reported continued exaggerated startle response, avoidance
of war-related conversation, flashbacks, and intrusive
thoughts of combat. He suspected that his symptoms increased
with the death of his wife in 1994. The veteran was quite
forgetful and it was noted that he may present as more
cognitively intact than he really was. He was confused about
his medications and adherence was quite questionable. The
impression was PTSD, rule out dementia, rule out depressive
disorder. It was opined that the veteran needed increased
supervision for his medication and a safe living environment.
The veteran was afforded a VA psychiatric examination in June
2003. It was noted that the veteran was 80 years old and
widowed. His wife passed away in 1994 and he has no
children. It was noted that service medical records document
his psychoneurosis which resulted from combat duty as a
rifleman during World War II. Following active duty, the
veteran worked at a rubber company until the company closed
in 1974. He reported chronic anxiety symptoms as well as
intermittent intrusive recollections, flashbacks, and
nightmares of his military experiences. He also reported
some depressive signs and symptoms including intermittently
depressed mood, tearfulness, and feelings of hopelessness.
He tended to avoid conversations regarding his military
experiences. He recalled that his company lost 200 men and
he was blown out of a foxhole by an artillery shell. He had
increased startle response and general anxiety which the
examiner noted was moderate in severity. He denied
hallucinations and did not voice delusions. He denied any
suicidal or homicidal ideation, intent, or plan. He had an
eighth grade education. There was no history of psychiatric
hospitalization or history of drug or alcohol abuse. The
examiner noted that the veteran was casually dressed with
fair hygiene and grooming. His speech was soft, clear,
coherent, and non-spontaneous. Eye contact was intermittent
and no psychomotor abnormality was noted. His mood was
dysphonic and anxious. His affect was anxious. Intermittent
tearfulness was noted. The veteran's thoughts were generally
coherent with some circumstantiality. His thought content
was preoccupied with intrusive recollections regarding his
experience in the military. He was alert and oriented to
person, place, and time. He recalled 3 out of 3 objects
immediately and 1 out of 3 objects after a delay. He was
able to perform 3 out of 5 serial 3 subtractions correctly.
His judgment and insight were fair. He appeared to have the
mental competency to manage VA benefits in his best interest.
The GAF score approximately 48 at the time of the evaluation.
The examiner opined that the veteran had signs and symptoms
of generalized anxiety disorder, probably related to an
overlying post-traumatic stress disorder related to his
military experience.
In a VA Form 9 completed in February 2004, the veteran's
nephew described the veteran's psychiatric problems, to
include forgetfulness and panic attacks which occur more than
once a week.
Analysis
Service connection for psychoneurosis was granted, by means
of a September 1945 rating action as the evidence showed that
veteran's acquired psychiatric disorder resulted from combat
during World War II. A 50 percent disability rating was
initially assigned effective September 14, 1945, the day
following the veteran's separation from active duty. The
disability evaluation was subsequently reduced to 10 percent
effective from June 29, 1946.
In April 2003, the veteran filed a claim for an increased
rating for his service connected psychiatric disorder.
Thereafter, the RO issued a July 2003 rating decision which
increased the disability rating to 30 percent, effective
April 2, 2003. The veteran perfected a timely appeal of this
decision, contending that his psychiatric disability is more
severe than presently evaluated.
Disability evaluations are determined by the application of a
schedule of ratings, which is based on average impairment of
earning capacity. Separate diagnostic codes identify the
various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4
(2003).
The percentage ratings in the Schedule for Rating
Disabilities (Schedule) represent, as far as can practicably
be determined, the average impairment in earning capacity
resulting from such disabilities and their residual
conditions in civil occupations. 38 C.F.R. § 4.1. Moreover,
each disability must be considered from the point of view of
the veteran working or seeking work. 38 C.F.R. § 4.2.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7.
The veteran's psychiatric disability is currently evaluated
under Diagnostic Code 9400 of the General Formula for Rating
Mental Disorders. 38 C.F.R. § 4.130 (2003). Under these
criteria, a 70 percent rating contemplates occupational and
social impairment with deficiencies in most areas, such as
work, school, family relations, judgment, thinking, or mood,
due to such symptoms as: suicidal ideation; obsessional
rituals which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to
function independently, appropriately and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or a worklike
setting); inability to establish and maintain effective
relationships.
A rating of 50 percent is warranted for occupational and
social impairment with reduced reliability and productivity
due to such symptoms as: flattened affect; circumstantial,
circumlocutory, or stereotyped speech; panic attacks more
than once a week; difficulty in understanding complex
commands; impairment of short- and long-term memory (e.g.,
retention of only highly learned material, forgetting to
complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; or difficulty
in establishing and maintaining effective work and social
relationships.
A rating of 30 percent is appropriate where for occupational
and social impairment with occasional decrease in work
efficiency and intermittent periods of inability to perform
occupational tasks (although generally functioning
satisfactorily, with routine behavior, self-care, and
conversation normal), due to such symptoms as: depressed
mood, anxiety, suspiciousness, panic attacks (weekly or less
often), chronic sleep impairment, or mild memory loss (such
as forgetting names, directions, recent events). 38 C.F.R.
§ 4.130, Diagnostic Code 9400.
In assessing the evidence of record, it is important to note
that the GAF score is a scale reflecting the "psychological,
social, and occupational functioning on a hypothetical
continuum of mental health-illness." Richard v. Brown, 9
Vet.App. 266, 267 (citing DIAGNOSTIC AND STATISTICAL MANUAL
OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32).
A score of 41-50 is assigned where there are, "Serious
symptoms (e.g., suicidal ideation, severe obsessional
rituals, frequent shoplifting) OR any serious impairment in
social, occupational, or school functioning (e.g., no
friends, unable to keep a job)." Id.
The Board notes that where entitlement to compensation has
already been established and an increase in the disability
rating is at issue, the present level of disability is of
primary importance. Francisco v. Brown, 7 Vet. App. 55, 58
(1994). After a review of the evidence, the Board finds that
the veteran's contentions are supported by the evidence and
that an increased disability evaluation of 50 percent, but no
greater, is warranted.
The Board finds that the veteran's symptomatology more
closely approximates the criteria for a 50 percent disability
evaluation as the evidence shows occupational and social
impairment with reduced reliability and productivity. While
the evidence does not show that the veteran experiences
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; his nephew has reported that he has panic
attacks more than once a week and that he has problems with
his memory. The medical evidence shows some
circumstantiality of thought, some memory impairment,
anxiety, depression, tearfulness, and increased startle
response, as well as intermittent flashbacks, intrusive
recollections and nightmares related to the veteran's combat
service. In addition, the GAF scores have ranged from 48 to
50. Accordingly, an increased disability rating of 50
percent is warranted for the veteran's psychiatric
disability.
The evidence does not show that the disability is manifested
by obsessional rituals which interfere with routine
activities; intermittently illogical, obscure or irrelevant
speech; near-continuous panic or depression affecting the
ability to function independently, appropriately and
effectively; impaired impulse control (such as unprovoked
irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
or an inability to establish and maintain effective
relationships. To the contrary, the evidence shows that his
speech displays a normal rate, volume, and rhythm. Likewise,
his speech is coherent. There veteran is not delusional and
his intellectual functioning is average with fair judgment
and insight. While depression and anxiety are noted, the
depression is intermittent and there is no medical evidence
of near continuous panic or an inability to function
independently, appropriately and effectively. In sum, the
evidence demonstrates that the symptoms and degree of social
and industrial impairment from the disability do not more
nearly approximate the criteria for a 70 percent rating than
those for a 50 percent rating.
Accordingly, the disability warrants a 50 percent rating.
ORDER
Entitlement to a disability rating of 50 percent, but not
higher, for psychiatric disability is granted, subject to the
criteria governing the payment of monetary benefits.
____________________________________________
Shane A. Durkin
Veterans Law Judge
Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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